DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 29^th day of  August 2024

[                                                                                             

                             Filed on: 04/09/2018

PRESENT

Shri.D.B.Binu                                                                            President

Shri.V.Ramachandran                                                               Member

Smt.Sreevidhia.T.N                                                                   Member

C C. No. 367/2018

COMPLAINANT

Siraj, S/o.Asharaf, Pothyvayil House, Peringala P.O., Kunnathunad, Kumarapuram, Ernakulam.

(By Adv.T.R.Sasi, Infant Jesus Buildings, XL-5977, Opp. High Court, Banerji Road, Cochin-31)

Vs.

OPPOSITE PARTIES

1. The General Manager (Corporative Office), Hero Motocorp Ltd., 34, Community Centre, Basant Lok, Vasant Vihar, New Delhi-110 057.
2. The Manager, Palal Motors, Irumpanam, Ernakulam

(ops rep. by Adv.K.S.Arundas, KHCAA Chamber No.450, Near High Court of Kerala, Ernakulam, Cochin-31)

F I N A L    O  R  D  E  R

Sreevidhia T.N., Member

1. A brief statement of facts of this complaint is as stated below:

On 16.04.2018, while the complainant was driving the vehicle at Willington Island, Ernakulam, suddenly the vehicle of the complainant stood still, automatically, due to break jam and the complainant was thrown out and seriously injured and left hand dismantled fractured.  The vehicle has a full coverage insurance and also special world class service insurance coverage at the time of the accident.  The complainant was admitted in various hospitals including Government Medical College.  A steel road was inserted at the time of operation and after one year only it can take out.  The complainant states that the first 3 services of the vehicle are done in correct time and in the 3^rd time service the damaged front break lever was replaced and the opposite party had not fitted the front break lever and hence the accident occurred due to the negligence from the part of the opposite party.  The system of break was not repaired properly.

The complainant had admitted in hospital for 27 days and the treatment as outpatient was continued for 3 months.

When the vehicle was checked in a Government authorized workshop, the workshop manager told to the complainant that there is manufacturing defect for the vehicle. The vehicle’s service was done in correct time and there is insufficiency of service and negligence.  The manufacturing defect of the vehicle, insufficient service and negligence from the part of the opposite party caused the accident.  

On 02.06.2018, the complainant had sent a lawyer notice but no reply was received from the opposite party.  The complainant has been working in Dubai and Oman based Company since 2004 and was drawing a salary of Rs.45000/- Indian currency.  Because of the serious injury on the left hand, he is not able to continue the work and so lost the job.  Because of the accident happened, the complainant was not able to pay the house loan taken by the complainant.

The complainant had noticed the following defects after getting the vehicle from the 2^nd opposite party.

1. There was integrated brake system failure
2. There was insufficiency of services and

Services were not done properly.

The complainant had approached the Commission seeking to pass orders.

1. To give direction to the Motor Vehicle Inspector for getting a report of the vehicle.
2. To get Rs.10 lakh as compensation from the opposite party for losing his job in gulf countries
3. To get Rs.50000/- as compensation for mental and physical pain.
4. Rs.50,000/- as hospital expenses.

Total Rs.11 lakhs (Rupees Eleven lakhs only) with interest @ 18% and costs from the date of application and such other reliefs as may be granted by the Commission.

2)       Notice

Upon notice from this Commission 1^st  and 2^nd opposite parties appeared and filed their version.

3. Version of the 1^st and 2^nd opposite parties.

The complaint is not maintainable either in law or on facts since there is no deficiency in service or unfair trade practice from the part of the opposite parties.  The allegation of the complainant is that he sustained injury due to manufacturing defects of his vehicle is absolutely incorrect.  The complainant has not produced any records to prove manufacturing defects.

It is true that the complainant purchased a Scooter from the opposite parties on 31.08.2017 being satisfied with its features, quality and sale price.  The complainant availed five regular services till 29.03.2018.  The allegation contained in paragraph No.2 of the complaint that “when he was driving the vehicle suddenly the break jammed and he fell down and seriously injured” is not within the knowledge of the opposite parties.  The complainant never approached the opposite parties for availing after sale service on or after 29.03.2018.

The allegation of the complainant that the accident happened due to manufacturing defect of the scooter is not correct hence denied.  The opposite parties are selling vehicles only after a number of quality check-up and road test.  If any deny defects detected in check-up, or in road test, the vehicle will not sell to the customers.  The complainant used the scooter eight months without any defect till the alleged accident. Hence it can presume that the scooter is free from any manufacturing defect.

The complainant never reported “Integrated break system failure” with opposite parties.  On a scooter fitted with integrated braking system, when the rear brake lever activates, both front and rear brakes.  This helps to increase stopping power and create fast controlled stops.  Since the integrated breaking system is working using metal spring, the same will not become defective or become jam.  The Ministry of Road Transport and High ways vide notification dated 04.03.2016 also directed the Transport Officers not to register the vehicles those are not equipped with advanced breaking system.  The allegation that the Government authorised workshop reported integrated breaking system failure is absolutely false and hence denied.  All service requests of the complainant were attended and done within a reasonable time and returned to the complainant.

Hon’ble National Consumer Disputes Redressal Commission of India in Sushila Automobiles Pvt. Ltd. Vs.Dr.Birendra Narain Prasad & Ors. Have categorically mentioned the following :- “At the very outset, it may be stated that to establish the claim for the total replacement by a new vehicle, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect.   Tata Engineering and locomotive Co.Ltd Vs.T.Nagaraju I (20000 CPJ 62), the National Commission held that it is necessary to have a report from a technical expert to ascertain whether the vehicle suffered from any manufacturing defect and if so, the nature and extent of those defects.    There is no deficiency in service or unfair trade practice from the side of the opposite parties.

4. Evidence

The evidence in this case consists of the documentary evidence filed by the complainant which were marked as Exbt.A1 series.  The Expert Commission Report filed by the Expert Commissioner is also marked as Exbt.’C1’.

The opposite parties 1 and 2 filed 4 documents which were marked as Exbt.B1 to B4.

Evidence was closed on 27.03.2023 and the case was posted for final hearing.  Both parties filed argument notes.  The case was posted for final hearing to 04.08.2023 and then adj to 03.11.2023 and then adj to 04.01.2024 and then adj to 22.02.2024 and then to 06.04.2020 and then adj to 07.06.2024.  Complainant was absent on 07.06.2024.  The 1^st opposite party alone represented.  The matter was partially heard on 04.01.2024.  Sincethe case is a long pending case taken for final orders:-

5. The issues came up for consideration in this case are as follows:

1. Whether the complaint is maintainable before this Commission?
2. Whether any deficiency in service or unfair trade practice is proved from the side of the opposite party towards the complainant?

3. If so, reliefs and costs?

6. Issue Nos. (1) and (2) and (3)

For the sake of convenience we have considered issue Nos. (1),(2) and (3) together.

The 1^st opposite party filed a copy of the order of the Revision Petition No.264/2015 of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi (Against the order dated 17.10.2014 in Appeal No.3250/2012 of the State Commission, Gujarath)

The 1^st opposite party argued that the instant case squarely fell within the ambit of Section 165 of the 1988 Act and the claims Tribunal constituted there under for the area in question had jurisdiction to entertain the same.  If the claim can be laid if it arises out of a accident caused by the Motor Vehicle and the District Commission has no jurisdiction to entertain the case.

The complainant’s counsel filed argument notes regarding the maintainability of the complaint.  The main points of arguments by the complainant are as follows:

1. The accident occurred within the jurisdiction of the Commission.
2. The complaint has filed within two years of occurrence of accident.
3.  The complaint is filed as per Section 13 of the Consumer Protection Act 1986 and is already admitted.

We have perused all the relevant sections of Consumer Protection Act, 1986 regarding maintainability of the consumer complaint.  The complainant is a ‘consumer’ of the opposite party and has paid a consideration to the opposite party for purchasing the vehicle.  Eventhough no documents are produced by the complainant to prove the consideration paid by the complainant, opposite party and admitted in their version that the complainant had purchased the Scooter from the opposite party on 31.08.2017 and had availed regular services upto 29.03.2018.  Hence it is proved that the complainant is a consumer of the opposite party.  The complaint is found maintainable before this Commission. 

The case of the complainant is that on April 16, 2018 while the complainant was driving the vehicle at Willington Island, Ernakulam.  Suddenly the vehicle like a sudden brake stood still (brake jammed) automatically and the complainant was thrown out and seriously injured and left hand dismantled and fractured.  The complainant alleges that two accidents were caused due to the manufacturing defect of the vehicle.  This type of manufacturing defect is called integrated break system failure.  The hospital records of the complainant shows that the complainant had seriously injured in the accident.  The complainant also alleges that the manufacturer of the scooter has stopped production in India on 29^th December  2016 (as per Companies website) only because of continuous accidents which occurs because of manufacturing defect.  We have thoroughly examined the facts of the case, version filed by the opposite parties and the documentary evidence filed by both the parties.

Exbt.A1 is a series of documents filed by the complainant.  It includes the following documents.

1.  Treatment certificate of the complainant dated 05.06.2018 from Government Medical College, Ernakulam.
2. Copy of the cash bills and receipts of the treatment made at Medical Trust Hospital, Ernakulam dated 16.04.2018.
3. Copy of the cash bills and receipts from Welcare Hospital, Vytilla Ernakulam dated 22.04.2018.
4. A copy of the Judgment of the Hon’ble High Court of Kerala order dated 14.07.2016.
5. Statement showing loss of salary damages and other financial loss
6. A copy of the passport of the complainant
7. A copy of the resident card of the complainant.
8. A copy of the x-ray (taken at Medical Trust Hospital, Ernakulam)

Exbt.C1 is the Expert Report filed by Sri.Noufal A., Motor Vehicle Inspector, Sub Regional Transport Office, Aluva.

Opposite party filed 4 documents

Exbt.B1 – Warranty Terms and conditions of the vehicle.

Exbt. B2- Service history of the vehicle.

Exbt.B3- reply notice issued to the complainant.

Exbt.B4- acknowledgment card of the reply notice sent to the complainant.

The main point to be examined in this case is whether the injuries sustained to the complainant is due to the integrated brake system failure or due to any manufacturing defect of the vehicle?

We have verified the Expert Commission Report filed by the Motor Vehicle Inspector.

Finding No.(1) of the Expert Commissioner

No evidence could be traced out to prove that the complainant had reported to the service centre about the defects he had experienced on his Motor cycle related to sudden acceleration and integrated break failure.

Finding No. (2)

          The Motor cycle has been test driven for 29 kms Engine response to Throttle control its acceleration and Deceleration etc were checked and found normal and sharp turns, straight roads and signal stops and while climbing and descending gradients were also seen satisfactory.  Gradual and sudden breaking performance test were carried out thoroughly during the test and no abnormalities found.  There were no signs of sudden acceleration issues or any integrated break failure problems as mentioned by the complainant.

Finding No. (3)

          Regular service/ Maintenance was done by the opposite parties till last service.  The odometer reading was found as 8497 km.  Both brake levers checked and found Ok (satisfactory). Integrated brake arm, joints, cables were inspected and found (satisfactory).

          The vehicle neither have any integrated brake system failure nor any manufacturing defect.  There was no insufficiency of service and negligence from the part of the 2^nd opposite party.

          The opposite party in their argument note submitted that there is no manufacturing defect in the vehicle.  In the instant case the complainant has not filed any objection to the Expert Report or he did not cross examine him.

          As per the Expert’s Report the allegation of the complainant that he sustained injuries due to the integrated brake failure is found not in favour of the complainant.  We found that the issue No. (2) and (3) are found not in favour of the complainant.  No deficiency in service or negligence or unfair trade practice is proved from the side of the opposite party towards the complainant.  There is no merit in the instant case as per the Report filed by the Expert Commissioner.  The initial onus to prove the allegations is upon the complainant who alleges it.  In the case of SGS India Ltd. Vs. Dolphin International Ltd. 2021 AIR SC 4849 held that it is the complainant who had approached the Commission therefore, without any proof of deficiency, the opposite party can’t be held responsible for deficiency in service.

The complainant has failed to prove his allegations against the opposite party.   We found that the complaint is liable to be dismissed and is accordingly dismissed.

Pronounced in the open commission on the 29^th day of August   2024.

Sd/-

                                                                                    Sreevidhia.T.N, Member

Sd/-

D.B.Binu, President

Sd/-

                                                                                    V.Ramachandran, Member

                                                                                                Forwarded by Order

                                                                                                Assistant Registrar

APPENDIX

Complainant’s evidence

Exbt.A1 series

.

Opposite party’s evidence

Exbt.B1 – Warranty Terms and conditions of the vehicle.

Exbt. B2- Service history of the vehicle.

Exbt.B3- reply notice issued to the complainant.

Exbt.B4- acknowledgment card of the reply notice sent to the complainant.

Depositions     ::

Exbt.C1- Commission Report.

Date of dispatch         ::

By Hand  ::                 By Post

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